How should today’s Japan-ROK relations be interpreted which is said the worst in their history? This paper discusses the logic of Moon Jae-in administration from the perspectives of its “justification” and “orthodoxy/legitimacy.”

Under the constraints of the nation’s division and the Cold War, ROK successfully maintained the “justification” of politics as a result of its democratization that took place immediately after the economic development. However, this “justification” was maintained with the lack of political “orthodoxy/legitimacy,” the dilemma of which was inevitably brought to the surface after the end of the Cold War and the democratization.

It was brought to the surface with the movement of going back their history in a way of trying to secure the “orthodoxy/legitimacy” of their politics by liquidating remnants of “pro-Japanese,” the collaborators with the Japanese colonial government. It was Moon Jae-in administration that played the central role of such movement, the administration that was born as a result of the “Candle Revolution,” which led president Park Geun-hye to her impeachment and dismiss.

President Moon Jae-in took it as his mission to establish the “orthodoxy/legitimacy” and to bring ROK back to the state of what the nation needs to be like, by eradicating deeply-rooted evils and wiping out “the pro-Japanese conservatives with vested interests.”

After the liberation, those “pro-Japanese” collaborators were supposed to be condemned, but they were instead protected under the Cold War and turned into a power of pro-Japanese conservatives with vested interests, as the mainstream of the politics and society, by colluding with the authoritarian governments for the sake of anti-communism and economic development. The true liberation and decolonization process, according to the logic, become complete only when successfully having eradicated those pro-Japanese and replaced the mainstream in order to secure the “orthodoxy/legitimacy,” which has been long absent and undiscussed.

Such movement grew into the denial of “ROK lead by conservatives,” taking place with the eradication of the deeply-rooted evils. It was not necessarily targeted at Japan but inevitably involved the issues of comfort women and forced labor as diplomatic problems, which was crucial for Moon Jae-in administration because it stands on the denial of Park Geun-hye. For Moon Jae-in, Japan-ROK normalization of diplomatic relations in 1965 lacked both “justification” and “orthodoxy/legitimacy,” which was nothing but the deeply-rooted evil.

If the eradication of pro-Japanese conservatives is expanded to the denial of ROK by conservatives, and furthermore, if Japan-ROK normalization of diplomatic relations is treated as deeply-rooted evils, it could lead to a political situation that will deny the Japan-ROK relations over the past half century and will call for a drastic reconstruction of the relations from the very beginning.

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In this article, the author analyses two judgements of the Supreme Court of Korea regarding the payment of compensation to the Korean war time laborers from the view point of public international law. Some of them are said to be forced or deceived at their recruitment by the Japanese private companies. In the judgement of 30 October 2018, the Court adjudicated that the Japanese company were still liable to compensate against the damage caused by such enforcement or deception.

However, the Japanese Government has reacted and protested against this judgement through the diplomatic channel. This is because, according to the Japanese Foreign Ministry, the issue of the compensation to the Korean war time laborers was already legally settled through the Japan-Republic of Korea Basic Relations Treaty and the Japan-Korea Claims Agreement of 1965. As the basic principle of public international law, particularly the basic principle of the law of the treaties, every treaty in force is binding upon the parties to it and must be performed by them in good faith (the principle of “pacta sunt servanda”). At the same time, a party to each treaty may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Therefore, Japan has alleged that the 2018 Judgement were internationally illegal and that the Korean Government were obliged to suspend the execution of the judgement. On the other hand, Moon Jae-in Administration has been supportive to the 2018 Judgement and refused to refer to arbitrate provided in Article 3 (2) of the Claims Agreement. As a result, Japan-Korea relation became dramatically worse and no one can foresee when the bilateral relation would get out from this situation.

This Japanese-Korean confrontation originally caused by the interpretation of the legality of the annexation (colonization) under the 1910 Treaty. Japan has regarded that the 1910 Treaty was concluded legally in light of the legal situation of the beginning of the 20^th century. On the contrary, Korea has never accepted the legality of the 1910 Treaty. Therefore, at the time of the conclusion of the Basic Treaty of 1965, the provision that “[i]t is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void” (italics added) was inserted. This article means that the both parties agreed to disagree about the legality of the 1910 Treaty.

In conclusion, the author points out that, as far as the Moon Administration’s policy on reconsideration of the past history and policies under the military or conservative régime continues, Japan would have to deal with such “historical” issue again and again. At the same time, the author points out that what is needed by the Japanese Government is the calm diplomacy with well-grounded (international) legal opinion.

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In October 2018, the Supreme Court of Korea ordered a Japanese company to pay four Korean men ₩100 million each as compensation for the damages from forced labor during World War II. In the next month, the Supreme Court ordered another Japanese company to provide compensation for the same kind of damages. They are called “Cho-yo-ko [forced laborers] Judgments” in Japan. These judgments have caused the Japanese Government to impose severe diplomatic actions upon Korea, i.e., restrictions of exports from Japan. Thereupon, the Government of Korea has carried out counter diplomatic policies toward Japan. As a result, it is said that the relationship between Japan and Korea has been the worst it has ever been since World War II.

This paper deals with the “Cho-yo-ko Judgments,” which have given rise to this situation. In particular, it examines the Supreme Court judgment in October 2018 and the lower judgments on the case in which the defendant was Nippon Steel Co., because this case has often been reported on by the media and was considered one of the most famous in Japan.

First, after giving the outline of this case, the paper introduces the judgments of the case that were delivered in Japan. Originally, two Korean men among the above plaintiffs brought a case forth in Japan against Nippon Steel Co. and the Japanese Government, but the case was dismissed. After that, the plaintiffs, in which two other Korean men joined in, brought a case forth in Korea against Nippon Steel Co. Although the trial court and the appellate court decided against the plaintiff on the grounds that the Japanese judgment should be recognized under the Korean Civil Procedure Act, in 2012 the Supreme Court overturned the lower court’s decision and sent the case back to Seoul High Court. The Supreme Court refused to recognize the Japanese judgments because of the order public of Korea and continuously held that the individual claims of the Korean men were not settled by the Agreement on the Settlement of Problems concerning Property and Claims and on Economic Co-operation between Japan and the Republic of Korea. Seoul High Court, which the case was remanded back to, ordered the defendant to pay compensation to plaintiffs in 2013. Finally, the Supreme Court confirmed the High Court judgment in 2018.

This paper also deals with Korean judgments. Since there are many legal issues arising in the fields of Public International Law, Private International Law, Constitutional Law, Civil Law, and Commercial Law, it examines some of these legal issues and how the judgments affected the relationship between Japan and Korea.

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　On December 17, 2015, the Seoul Central District Court gave a verdict of not guilty to Tatsuya Kato, former Seoul bureau chief of Sankei Shimbun. He had been charged with defaming South Korea’s President Park Geun-hye. The purpose of this study is to analyze the decision and examine suggestions for the defamation laws in Japan and South Korea. Although I agree with the conclusion of the decision, I cannot accept the part of verdict on defamation of Park as a private figure. 　　Structural problems exist in South Korea’s defamation laws, and the criminal prosecution of this case deviates from the international standards. Therefore, it is natural that the United Nations has repeatedly recommended that the South Korean government abolish criminal defamation. South Korea has to fundamentally reform the criminal defamation law, which has suppressed critical speech. 　　Meanwhile, this case has considerable implications for Japan, where criminal defamation is being applied. Japan should also join the international community in pursuing abolition or a strict application of the criminal defamation law as it has harmful effects on democracy as well as freedom of expression.

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様々な社会亀裂が政党を通じて選挙で表出された上で国民統合を実現することが政治の要請だとすると，韓国政治は最近，新しい局面を迎えている。第16代大統領選挙（2002年12月）において，従前の地域亀裂に加えて，世代や理念などの亀裂が顕著になり，西部地域・若年層・進歩派に主に支持された盧武鉉大統領は国民統合を国政課題に掲げた。本稿では，第17代大統領選挙（2007年12月）における有権者の候補者選択について，経済社会的な特性や理念的な性向に注目して明らかにし，韓国政治の変化と課題を展望する。 　サーベイ調査に基づく分析の結果，地域・世代・理念などの社会亀裂は依然として有意な差をもたらしているものの，全般的に弱まり，李明博候補は国民から幅広い支持を得て当選したことが明らかになった。ただ，この変化は，盧武鉉大統領による国民統合の成果というよりもむしろ，格差問題が悪化する中で，雇用不安定層こそが李明博候補を支持したためである。李明博大統領は今，経済成長と格差問題の是正という相反するかもしれない2つの課題を同時に実現するという困難な国政課題に直面している。仮に前者が実現したとしても後者に繋がらなければ，今後，階級亀裂が現れるものと展望される。

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情報通信の驚くべき発展は、伝送技術の発展による表現の自由を拡大するという肯定的な側面にもかかわらず、サイバー空間に現れる副作用などによるプライバシー侵害や名誉毀損、個人情報保護と関連した問題など、現実的に解決しなければならない多くの課題を引き起こしている。

特に伝統的に人格権を強く重視するヨーロッパでは、最近「忘れられる権利」の概念を導入することに対して活発な議論が進められており、2014 年5月13日の欧州司法裁判所の「忘れられる権利」に関する判決の後、韓国でもそれと関連した議論がなされている。

本稿では、まず忘れられる権利が議論される背景を確認し(２)、忘れられる権利の概念(３)および憲法学的根拠(４)を検討した後、その制限と限界(５)について考察する。

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Changes of government parties had been regarded as unrealistic in the post-war Japan. As the party system has been transformed during the 1990s, however, changes of government parties have been realized. Moreover, the result of elections was partially due to the government’s diplomatic performance. That is why this topic has received much more attention. We extend the research scope by including not only changes of cabinets by the same government party but also regime changes such as breakdown of democracy or democratic transition. We often ascertain that changes of leaders in the same party sometimes brought much more different policies, but regime changes brought very little change on their policies.
Regarding the impact of governmental performance on changes of governments, we must accumulate many case studies. “Failure” of diplomacy is sometimes regarded as fatal and promotes changes of governments, but ordinary governments usually never regard it as failure. How much weight is the evaluation of diplomatic performance considered in the voting behavior in elections? How much change do electoral results bring in terms of political arrangements? Domestic political process is important for explaining the impacts of international factors on changes of governments.
Moreover, we must take the impact of governmental changes on the continuity of diplomacy into consideration. On the one hand, diplomacy might have to be consistent regardless of governmental changes because its national interest is relatively constant according to its international environment, and its reliable relation with other countries is so important lest the revolving policy changes should cause damage to its diplomacy. On the other hand, changes of foreign policy due to governmental changes should be taken for granted because diplomacy has to be under democratic control. What is problem is how to compromise the mutual different views of previous diplomatic achievements between countries.
The role of political leaders is important in terms of diplomacy, but changes of leaders never always bring policy changes. Moreover, the role of such professional institutions as NSC is also important for diplomatic stability, but they cannot automatically guarantee diplomatic continuity. The institutionalization of decision-making process is also important, but performance of leaders are sometimes beyond institutional constraints. International constraints are regarded as decisive for guaranteeing diplomatic continuity. What is important is not whether such constraints exist or not, but how much constraint governments perceive. A government ordinarily cannot but obey the constraints, but it sometimes tries taking advantage for promoting policy changes. Nixon’s policy toward Vietnam and Brandt’s Ostpolitik are regarded as latter cases. International constraints are not always obstructive for policy changes, and the new government sometimes can change the perception toward constraints and take the chance for policy changes.

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